Sahangir Molla @ Rana vs State Of West Bengal
2021 Latest Caselaw 5829 Cal

Sl. No. 33




                   IN THE HIGH COURT AT CALCUTTA
                      CRIMINAL APPELLATE JURISDICTION
                              APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
             And
The Hon'ble Justice Bivas Pattanayak

                               C.R.A. 11 of 2016

                             Sahangir Molla @ Rana
                                      -Vs-
                              State of West Bengal



For the Appellant :            Mr. Sandip Chakraborty, Adv.
                               Mr. Suvendu Das, Adv.
                               Mr. Koustav Das, Adv.


For the State :                Mr. Saibal Bapuli .. Ld. Addl. Public Prosecutor
                               Mrs. Manasi Roy, Adv.



Heard on :                     25.11.2021


Judgment on:                   25.11.2021


Joymalya Bagchi, J. :-

        The appeal is directed against the judgment and order dated 21st

December, 2015/22nd December, 2015 passed by the learned Additional

Sessions Judge, Fast Track Court-3, Barrackpore, North 24-Parganas in

Sessions Trial No. 05(06)/2014 (Sessions Case No. 137 of 2014) convicting

the appellant for commission of offence punishable under Sections

489B/489C of the Indian Penal Code and sentencing him to suffer

rigorous imprisonment for ten years and to pay fine of Rs.20,000/-, in
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default, to suffer rigorous imprisonment for six months more for the

offence punishable under Section 489B IPC and to suffer rigorous

imprisonment for five years and to pay fine of Rs.10,000/, in default, to

suffer rigorous imprisonment for three months more for the offence

punishable under Section 489C of the Indian Penal Code; both the

sentences to run concurrently.

     The prosecution case as alleged against the appellant is to the effect

that on 28th November, 2013 at about 00:30 hrs. SI, Sahabuddin Mondal

of Airport Police Station (PW1) received a source information that one

notorious criminal namely, Rana of Louhati area was operating in fake

currency notes of denomination of Rs.500/- and Rs.1000/- in a

clandestine manner. Source further informed that the miscreant was

expected to come between 1:00 to 1:30 hrs. in the vicinity of Michael

Nagar and Jessore Road in connection with clandestine trafficking of

FICN. The aforesaid information was diarised as G.D. Entry No. 1522

dated 28.11.2013. After obtaining permission of ADCP, Airport Police

Station, SI Sahabuddin Mondal, (PW1) along with ASI, Hasan Imam

Mallick, Constable Sanjoy Garai (PW5), Constable Sajal Kumar Dey (PW3)

went to the spot in vehicle No. WB-74X-6875 after diarising such fact in

G.D. Entry No. 1523 dated 28.11.2013. At about 00:55 hrs., they reached

near Michael Nagar Dhaba on Michael Nagar-Jessore Road and kept

watch. At around 01:30 hrs they noticed a chaos inside Michael Nagar

Dhaba. They rushed to the Dhaba and the source pointed out to a person

who was engaged in altercation with the shopkeeper of the Dhaba as the

trafficker of the FICN. Police intercepted him inside the Dhaba. Shyamlal
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Ghosh (PW7), cashier of the Dhaba stated that the detained person had

come to the Dhaba and ordered food. He had offered two currency notes of

Rs.500/- each against the food bill of Rs.755/-. Shyamlal suspected the

notes to be fake and asked him to change the notes. At this the detained

person insisted that the notes were genuine. Upon interrogation, the

detained person disclosed his identity as the appellant. Thereafter, the

police personnel searched the appellant and 30 nos. of Indian Currency

notes in denomination of Rs.500/- each amounting to Rs.15,000/- in all

wrapped in an old Bengali newspaper dated 23rd September, 2013 was

recovered from the right side pocket of his trouser and cash memo dated

28.11.2013

of Rs.755/- was also recovered from the right side shirt pocket

of the appellant. Police also recovered one black colour money bag

containing Rs.120/- in genuine currency notes. The aforesaid currency

notes suspected to be fake were seized under a seizure list and the police

personnel obtained the signature of the accused thereon. The seized

articles were sealed and labelled at the spot in the presence of witnesses.

After reaching the police station, PW1 lodged written complaint resulting

in registration of Airport Police Station Case No. 343 of 2013 dated

28.11.2013 under Sections 489B/489C of the Indian Penal Code. During

investigation, seized currency notes were sent for expert opinion and upon

receipt of expert opinion, charge-sheet was filed. Case was committed to

the Court of learned Additional Sessions Judge, Barrackpore, North 24-

Parganas and transferred to the Court of the learned Additional Sessions

Judge, Fast Track Court-3, Barrackpore, North 24-Parganas for trial and

disposal. Charges were framed under Sections 489B/489C IPC. The

appellant pleaded not guilty and claimed to be tried. In the course of trial,

prosecution examined 9 witnesses and exhibited the expert opinion

(Exhibit-7) that the seized currency notes were fake. In conclusion of trial,

the trial Judge by the impugned judgment and order dated 21st December,

2015/22nd December, 2015 convicted and sentenced the appellant, as

aforesaid.

Mr. Sandip Chakraborty, learned counsel appearing for the

appellant submits that the prosecution case has not been proved beyond

doubt. There are discrepancies in the seizure and labelling of the

suspected FICNs. It is unclear when the seized articles were sent to the

expert for examination. While the Investigating Officer (PW9) stated that

the seized alamat was sent for examination after he had assumed charge

of investigation on 6th December, 2013, PW6 (D. Purnachandra Rao) expert

attached to Bharatiya Reserve Bank Note Mudran Pvt. Ltd. deposed that

they received the sealed envelope on 28th November, 2013. He accordingly,

prayed for acquittal.

Mr. Saibal Bapuli, learned Additional Public Prosecutor, argues that

the prosecution case is proved through the evidence of PW1 and other

witnesses. Expert opinion (Exhibit-7) shows that the seized currency notes

were fake. There is no breach in the chain of custody as the seized notes

bore the signature of the appellant and the seal of the envelope was also

intact. He prayed for dismissal of the appeal.

P.W. 1 SI- Sahabuddin Mondal is the leader of the raiding party as

well as the first informant in the present case. On receipt of source

information which was diarised as G.D. Entry No. 1522 dated 28.11.2013,

P.W. 1 along with A.S.I. Hasanimam Mallick, Constable Sajal Kr. Dey, P.W.

3 and Constable Sanjoy Garai, P.W. 5 left for Mikelnagar, Dhaba in a

vehicle. They kept watch over the Dhaba. At around 1.30 AM there was a

hot altercation inside the Dhaba. Source identified the appellant. PW 7,

cashier of the Dhaba told P.W. 1 that the appellant had come to Dhaba to

purchase food. He sold food to him for Rs. 755/- and the appellant had

handed over two notes of Rs.500/- each. As the notes appeared to be

suspicious, the cashier requested the appellant to replace them. He

refused and altercation ensued. Under such circumstances, P.W. 1

decided to search the appellant. Cashier of the Dhaba, Shyamlal Ghosh,

P.W. 7 and another employee Tapas Mondal, P.W.2 offered themselves as

witnesses. Offer was made to the appellant to search the police personnel

and a nil seizure list (Exhibit -1) was prepared. Thereafter the appellant

was searched and 28 currency notes wrapped in a piece of old

Anandabazar Bengali News Paper were recovered from the right side of his

pocket of his pant. Two currency notes were recovered alongwith cash

memo of the Dhaba from his shirt pocket. Currency notes were seized

under a seizure list marked as Exhibit 2. Seized items were labelled and

sealed. Signatures of the appellant were obtained on the currency notes.

Seizure list witnesses signed on the envelope. Thereafter, the appellant

was taken to police station with the seized alamats. Written complaint

(Exhibit- 5) was lodged by PW 1. PW 1 identified the FICNs in Court, MAT

Exhibit 1/1. The witness was extensively cross-examined but nothing

worthwhile was elicited out of him.

On the other hand, his evidence is corroborated by the other

members of the raiding party, PWs 3 and 5, the cashier of the Dhaba (P.W.

7) and the cook (P.W. 2). The aforesaid witnesses proved their signatures

on the seizure list as well as on the envelope.

In view of the aforesaid evidence on record it appears that the

prosecution has been able to prove the seizure of 30 pieces of currency

notes suspected to be fake from the possession of the appellant.

P.Ws. 8 and 9 are the Investigating Officers in the instant case.

P.W. 8, SI Pratapaditya Mondal deposed that he commenced his

examination by examining S. I. Sahabuddin Mondal and other members of

the raiding party. He prepared a rough sketch map with index. In cross-

examination he stated that upon receipt of alamats from Court he

deposited it with the Malkhana Officer.

P.W. 9, SI Sahidullah Sana deposed that he took over investigation

on 06.12.2013. He sent the alamats namely FICNs for expert opinion.

Upon receipt from expert, he submitted charge sheet.

P.W. 6, D. Purnachandra Rao is the expert. He deposed that he is a

manager in Printing division of forged note detection cell of Bharatiya

Reserve Bank Note Mudran Pvt. Ltd. He was posted at the said place in

same capacity on 28.11.2013. On that date he received a sealed envelope

containing 30 pieces of currency notes of Rs.500/- denomination each

from police for examination. He examined the currency notes and found to

be fake. He proved his report and marked as Exhibit -7. He also proved the

envelope and his signature thereon. He also proved the seal on each note.

Referring to the aforesaid evidence of PW 6, learned counsel for the

appellant has argued that there is a snap in the chain of custody as the

said witness claimed that the FICNs were received by his office on

28.11.2013, while the second Investigating Officer, S.I. Sahidullah Sana

(P.W. 9) deposed upon taking over the charge of investigation on

06.12.2013 he had sent the notes for expert opinion. On the first blush,

versions of the witnesses appear to be contradictory to one another. In

order to have a better appreciation of the matter, I have gone through the

exhibits particularly, the expert opinion i.e., Exhibit - 7 wherein it is

categorically recorded that the sealed envelope was received on 09.12.2013

by the Bharatiya Reserve Bank Note Mudran Pvt. Ltd. It is settled law that

documentary evidence prepared in the ordinary course of business has a

higher evidentiary value than an oral statement made by a witness in

Court.

Hence, we are constrained to hold that the deposition of P.W.6 to the

effect that he received the envelope on 28.11.2013 in Court is incorrect

and not borne out by the document prepared by him in the ordinary

course of business which unequivocally states that the currency notes

were received on 09.12.2013 and not on 28.11.2013.

Furthermore, consistent evidence of PWs. 1, 8 and 9 have clearly

established the chain of custody between seizure of the currency notes

from the place of occurrence to the office of Bharatiya Reserve Bank Note

Mudran Pvt. Ltd wherein they were examined. Moreover, the currency

notes bore the signature of the appellant and the sealed envelope was also

signed by independent witnesses, namely, PWs 2 and 7. Envelope was

found in a sealed condition by PW6 and, therefore, we are of the opinion

that there was no case of substitution of the seized alamats in the facts of

the case.

In the light of the aforesaid discussion, I uphold the conviction

recorded against the appellant.

Coming to issue of sentence, I find a rule of enhancement of

sentence was issued at the time of admission of appeal. The appellant

does not have any criminal antecedents. Balancing the aggravating and

mitigating factors in the present case, I am of the opinion the sentences

imposed upon the appellant is reasonable and justified. Under such

circumstances, we are not inclined to enhance the sentences imposed

upon the appellant.

The appeal is dismissed.

Rule is discharged.

Period of detention, if any, undergone by the appellant during

investigation, enquiry and trial shall be set off against the substantive

sentence imposed upon him in terms of Section 428 of the Code of

Criminal Procedure.

Lower court records along with a copy of this judgment be sent

down at once to the learned trial court for necessary action.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

(Bivas Pattanayak, J.)                               (Joymalya Bagchi, J.)